TALLI GRAM PANCHAYATversusUNION OF INDIA AND OTHERS

126                      [2022]REPORTS
               SUPREME COURT    7 S.C.R. 126                [2022] 7 S.C.R.


A                        TALLI GRAM PANCHAYAT
                                       v.
                      UNION OF INDIA AND OTHERS
                      (Civil Appeal Nos. 383-384 of 2022)
B                                JULY 11, 2022
              [DR DHANANJAYA Y CHANDRACHUD AND
                       A. S. BOPANNA, JJ.]
             National Green Tribunal Act, 2010 – s.4(4)(c) – National Green
      Tribunal (Practice and Procedure) Rules, 2011 – Amendment in r.3
C
      – By notification, a proviso was inserted in r.3 of the 2011 Rules,
      which allowed the constitution of a single member Bench in
      exceptional circumstances – The said notification was challenged
      – Before the Supreme Court on 11.01.2018, the Attorney General
      of India assured that the rule which is under challenge shall be
D     rectified in consonance with the 2010 Act – However on 29.01.2018,
      a single member of the NGT dismissed an application for
      condonation of delay, which was filed by the appellant – On
      31.01.2018, Supreme Court in the petition challenging the validity
      of the government order directed that the Chairperson of the NGT
      shall not constitute a single member Bench and each bench shall
E
      consist of one judicial member and an expert member – Appellant
      preferred an application for recall of the order of the single member
      dated 29.01.2018 and condonation of delay – The Tribunal dismissed
      both the applications by an order dated 16.07.2021 – On appeal,
      held: The single member of the NGT who dismissed the application
F     for condonation of delay submitted by the appellant on 29.01.2018
      had, in other cases, abstained from passing any judicial order on
      the ground that there was a stay on the composition of a single
      member bench – Propriety warranted that a consistent course of
      action should have been followed by the NGT, once the assurance
      which was held out before Supreme Court by the Attorney General,
G
      was brought to its knowledge – The phraseology of the order that
      the Supreme Court dated 31.01.2018 intended that there be an
      interdict on the constitution of single member benches constituted
      in purported exercise of the power conferred by the rule – The
      assumption of jurisdiction by a single member Bench clearly stands
H     vitiated – The Single member could not have passed an order in
                                       126
    TALLI GRAM PANCHAYAT v. UNION OF INDIA AND                          127
                    OTHERS

view of the proviso to s. 4(4)(c) of the Act – The impugned order       A
dated 16.07.2021 and original order of NGT dated 29.01.2018 set
aside.
      Allowing the appeals, the Court
       HELD: 1. The single member of the NGT who dismissed
the application for condonation of delay submitted by the appellant     B
on 29 January 2018 had, in other cases, abstained from passing
any judicial order on the ground that there was a stay on the
composition of a single member bench. Similar orders were passed
on the same day in other cases as well. However, the single member
dismissed the application for condonation of delay filed by the         C
appellant though he did not pass any order in the other cases in
view of the assurance that was made by the Attorney General
before this court. The order of this court on 11 January 2018
notes the assurance of the Attorney General that the rule under
challenge would be rectified to bring it in accord with the Act and
the judgments of this court. True, the order of this Court does         D
not specifically record a direction for stay. This must however,
be understood in the perspective of the fact that the Attorney
General had placed a solemn assurance before the Court that
the rule would be rectified to bring it in conformity with the parent
enactment and the decisions of this Court. Implicit in this is the      E
settled principle that delegated legislation must be in conformity
with the enactment of the legislature which authorises its making.
A rule cannot rise above the source of power. Propriety warranted
that a consistent course of action should have been followed by
the NGT, once the assurance which was held out before this court
by the Attorney General, was brought to its knowledge. The order        F
of this Court on 31 January 2018 directed that “in the meantime,
the Chairperson shall not constitute a Single Member Bench….”.
The phrase “in the meantime’ elucidates that during the time the
executive deliberates on the dissonance of the Rule with the Act
and judgments, there shall be a restraint on its implementation.        G
Thus, it is evident from the phraseology of the order that this
Court intended that there be an interdict on the constitution of
single member benches constituted in purported exercise of the
power conferred by the rule. The assumption of jurisdiction by a
single member Bench clearly stands vitiated. The Single member
                                                                        H
128               SUPREME COURT REPORTS                     [2022] 7 S.C.R.


A     could not have passed an order in view of the proviso to Section
      4(4)(c) of the NGT Act 2010 which states that the number of
      expert members hearing the appeal or application shall be equal
      to the number of judicial members, mandating that there shall be
      at least one expert member on the Bench. [Para 12][133-F; 134-
      A-F]
B
               Save Mon Region Federation v. Union of India 2013
               (1) All India NGT Reporter 1; Goa Foundation,
               through its Secretary v. Goa Tourism Development
               Corporation (OA No. 156/2016); Rajabhau Pawar v.
               The State of Goa through its Chief Secretary (OA No.
C              97/2016); The Goa Foundation v. Goa State EIAA (OA
               No. 33/2015) - referred to.
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 383-
      384 of 2022.

D           From the Judgment and Order dated 16.07.2021 of the National
      Green Tribunal, Principal Bench in MA No. 03 of 2019 & MA No. 04 of
      2019 in MA No. 262 of 2017 in Appeal No. 36 of 2017 (WZ).
           Sanjay Parikh, Sr. Adv., Abhimanue Shrestha, Satwik Parikh,
      Divyansh Khurana, Shivam Tomar, Advs. for the Appellant.
E           Ms. Aishwarya Bhati, ASG, Dr. A.M. Singhvi, Sr. Adv., Ms. Ruchi
      Kohli, Ms. Swarupama Chaturvedi, Digvijay Dam, Ms. Poornima Singh,
      G.S. Makkar, Ms. Vanita Bhargava, Ajay Bhargava, Ms. Shweta Kabra,
      Ms. Prerna Singh, M/s. Khaitan & Co., Ms. Archana Pathak Dave,
      Ms. Aastha Mehta, Ms. Deepanwita Priyanka, Advs. for the
F     Respondents.
               The Judgment of the Court was delivered by
               DR DHANANJAYA Y CHANDRACHUD, J.
             1. These appeals arise from an order dated 16 July 2021 of the
      National Green Tribunal1. The appellant challenged the grant of an
G     environmental clearance to Ultratech Cement Limited2 by a letter dated
      5 January 2017. The NGT by the impugned judgment dismissed the
      applications to recall the order of a single member and for condonation
      of delay.
      1
          “NGT”
      2
H         “Fourth respondent”
     TALLI GRAM PANCHAYAT v. UNION OF INDIA AND                                129
     OTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

       2. By a letter dated 5 January 2017, the Ministry of Environment,       A
Forest and Climate Change3 granted an environment clearance to the
fourth respondent for limestone mining with a total production capacity
of 0.53 million tonnes per annum at villages Talli and Bambor situated in
Taluka Talenja, of the District of Bhavnagar in the State of the Gujarat.
The fourth respondent served a copy of the environment clearance upon
                                                                               B
the Talathi-Cum-Mantri of the Gram Panchayat on 12 January 2017
through a letter dated 9 January 2017. The fourth respondent also issued
a public notice on the grant of the environmental clearance on 11 January
2017 in Gujarati in “Saurashtra Samachar” and in English, in “Gujarat
Samachar”. The appellant challenged4 the environmental clearance which
was granted to the fourth respondent under Section 16 of the NGT Act on        C
several grounds including the following:
       “a) The area is ecologically sensitive, as the same has been notified
       as Brujad Gir. The same has been concealed by the Project
       Proponent.
       b) Out of the total area of 193.3269 Ha., 155.3269 a is the private     D
       agricultural land. The consent of all the land holders, mandatory
       under the Mines and Minerals Developments Act has not been
       obtained by the Project Proponent. Such, land holders have also
       not been given any opportunity in the process, while the decision
       affects their land rights protected under Art. 300A of the              E
       Constitution.
       c) The area falls within the catchment area of four bandharas,
       proposed to be constructed to provide for water for irrigation and
       drinking.
       d) The mining if permitted would have severe effect of environment      F
       and ecology and also the life and livelihood of the villagers.”
       3. The appellant obtained leave to file an application for
condonation of delay5 since the appeal was filed beyond the prescribed
period of 30 days. The fourth respondent contended that the notice was
published in the newspapers on 11 January 2017 and the letter was served       G
upon the Talathi-cum-Mantri on 12 January 2017 and therefore, the period
of limitation must be calculated from these dates. However, the appellant
3
  “MoEFCC”
4
  Appeal No. 36 of 2017
5
  MA 262 of 2017 in Appeal No. 36 of 2017                                      H
130             SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A     contended that the publication was not in conformity with the statutory
      requirements under Clause 10 of the Environment Impact Assessment
      Notification as interpreted in Save Mon Region Federation v. Union
      of India6. The appellant argued that the environment clearance certificate
      must be uploaded on the website and has to be accessible and
      downloadable to the public. The appeal along with the application for
B
      condonation of delay was heard on 24 November 2017. In view of the
      position of law in Save Mon Region Federation (supra), the Tribunal
      sought a clarification on whether the environment clearance which was
      uploaded on the website was accessible to and could have been
      downloaded by the public.
C            4. On 1 December 2017, the MoEFCC introduced an amendment
      to the National Green Tribunal (Practice and Procedure) Rules 2011 7 by
      Notification GSR No. 1473(E)8. By the Notification, a proviso was
      inserted in Rule 3 of the 2011 Rules which allowed the constitution of
      single member Benches in exceptional circumstances. Rule 3 of the 2011
D     Rules, as amended by the notification reads as follows:
             “Distribution of business amongst the different ordinary
             place or places of Sittings of Tribunal.- (1) The Chairperson
             may constitute a bench of two or more members consisting of at
             least one Judicial member and one Expert member.
E            [Provided that in exceptional circumstances the Chairperson may
             constitute a single Member Bench]”
             5. Subsequently, by an office order dated 5 December 2017, the
      Chairperson of the National Green Tribunal, in exercise of powers
      conferred under Rule 3(1) of the 2011 Rules constituted single member
F     Benches at the Regional Benches due to a shortage of members. The
      office order read as follows:
             “In exercise of powers conferred under Rule 3(1) of the National
             Green Tribunal (Practices and Procedure) Rules 2011 as amended
             vide Gazatte Notification No. G.S.R 1473 (E) dated 01st December,
G            2017 of the Ministry of Environment, Forest and Climate Change,
             Government of India and in view of the exceptional circumstances
             prevailing in the National Green Tribunal on account of the shortage
      6
        2013 (1) All India NGT Reporter 1
      7
        “2011 rules”
      8
H       “notification”
        TALLI GRAM PANCHAYAT v. UNION OF INDIA AND                               131
        OTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

         of the Members, necessitating constitution of a Single Member           A
         Bench at the Regional Branches of the Tribunal. Accordingly, a
         Single Member Bench is constituted in the Regional Benches at
         NGT SZB (Chennai), NGT CZB (Bhopal), NGT WZB (Pune) &
         NGT EZB (Kolkata) to conduct business of the Tribunal which
         shall be fully empowered to deals with the matters in accordance
                                                                                 B
         with law.”
       6. The National Green Tribunal Bar Association (Western Bench)
instituted a petition9 under Article 32 of the Constitution, for challenging
the notification dated 1 December 2017 and the office order issued by
the Chairperson of the NGT on 5 December 2017 on the ground that
they contravened Section 4(4)(c) of the NGT Act 2010 which requires              C
each Bench to consist of an equal number of judicial and expert members.
This Court while hearing the petition on 11 January 2018, issued the
following directions:
         “Let a copy of this petition be supplied to Mr. PS Narasimha,
         learned ASG assisting Mr. K.K. Venugopal, learned Attorney              D
         General of India. It is assured by Mr. Venugopal that the rule
         which is under challenge shall be rectified in consonance with the
         Act, and also in consonance with the spirit of the judgments of this
         Court.”
       7. On 29 January 2018, a single member of the NGT dismissed               E
the application for condonation of delay which was filed by the appellant,
for non-prosecution. The order of the single member reads as follows:
         “The applicant is absent.
         All the Respondents in chorus seek dismissal of this Application        F
         pointing out lack of diligence of the Applicant in the prosecution
         of this case.
         Perused the record. As the Respondents pointed out the
         applicant has shown no diligence in prosecution of this case.
         Hence, the Application MA No. 262/2017 stands rejected with no          G
         order as to costs.”
       On 31 January 2018, this Court in the petition challenging the validity
of the government order directed that the Chairperson of the NGT shall

9
    WP (C) No. 1235 of 2017                                                      H
132                SUPREME COURT REPORTS                        [2022] 7 S.C.R.


A     not constitute a single member Bench and each bench shall consist of
      one judicial member and an expert member. Subsequently, the acting
      Chairperson of the NGT issued an order that no single member Bench
      shall be constituted in any zonal benches with immediate effect.
             8. The counsel for the appellant preferred an application for recall
B     of the order of the single member dated 29 January 2018 10 along with an
      application for condonation of delay in moving the application a year
      after the order sought to be recalled was passed11. The applications
      were taken up for hearing two years after they were filed. By an order
      dated 16 July 2021, the Tribunal dismissed both the applications observing
      that even if the prayer for recall of the order is granted, the application
C     of condonation of delay in filing the appeal cannot be allowed. The Tribunal
      observed that the only ground of the appellant in seeking condonation of
      delay is that they did not have knowledge of the grant of the environment
      clearance. It held that such a contention cannot be accepted since the
      environment clearance was duly uploaded and that the period of limitation
D     must be calculated from when the order was uploaded. It was observed:
             “Even if we grant the prayer for recall, the fact remains that MA
             No. 262/2017 (WZ), Bambor Gram Panchayat & Ors. v. Ministry
             of Environment & Forest & Ors., which is for condonation of
             delay in filing the appeal, cannot be accepted as ground pleaded is
             that the appellant did not have knowledge of the grant of EC. EC
E            was duly uploaded and individual knowledge is not the starting
             point. The EC was granted on 05.01.2017 while the appeal was
             filed on 19.4.2017 beyond the prescribed period of limitation and
             also the period of limitation for which this Tribunal can condone.”
             9. The appellant instituted these proceedings for challenging the
F     order of the Tribunal on the ground that the order passed by the single
      member on 29 January 2018 is null and void because the constitution of
      a bench comprising of a single member is in contravention of Section
      4(4)(c) of the NGT Act 2010. The appellant also contended that the
      lawyer who was previously engaged to represent it returned the file
      because he was appointed as a Government Advocate and that he had
G
      brought this information to the notice of the Tribunal. The appellant urged
      that the lawyer subsequently engaged by the appellant was not provided
      any notice of the hearing in spite of the fact that the appeal was taken

      10
           MA No. 3 of 2019
      11
H          MA No. 4 of 2019
     TALLI GRAM PANCHAYAT v. UNION OF INDIA AND                                  133
     OTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

up after a long gap in time. The appellant thus set up the plea of a violation   A
of the principles of natural justice.
       10. Opposing these submissions, the fourth respondent contended
that:
       (i)    The order of environment clearance was communicated
              on 5 January 2017 and the Tribunal does not have the power         B
              to condone a delay beyond 90 days under the proviso to
              Section 16 of the NGT Act 2010, even if sufficient cause
              is shown;
       (ii)   The conduct of the appellant has been negligent because
              he has not appeared before the Tribunal on multiple                C
              occasions; and
       (iii) The single member was not coram non judice at the time of
              the passing of the order on 29 January 2018 since the order
              of this Court directing that single member benches shall not
              be constituted was passed two days later, on 31 January
              2018.                                                              D
       11. The issue before this Court is whether a single member of the
Tribunal could have dealt with the proceedings and dismissed the
applications for restoration and for condonation of delay on 29 January
2018 after the Attorney General of India had assured this Court on
11 January 2018 that the proviso to Rule 3 would be rectified in                 E
consonance with the Act and the judgments of this Court. On 31 January
2018 this Court also directed the Chairperson of the NGT not to constitute
single member Benches.
       12. The single member of the NGT who dismissed the application
for condonation of delay submitted by the appellant on 29 January 2018           F
had, in other cases, abstained from passing any judicial order on the
ground that there was a stay on the composition of a single member
bench. In an order dated 23 January 2018,12 the member noted as follows:
       “Learned Counsel for the contesting parties are present. They
       submit the case be taken up for hearing after sometime in view of
                                                                                 G
       stay may be with regard to composition of Single Member Bench
       of this Tribunal. Request accepted. List for further proceedings
       on 1st March, 2018.”

12
  Goa Foundation, through its Secretary v. Goa Tourism Development Corporation
(OA No. 156/2016)                                                                H
134             SUPREME COURT REPORTS                               [2022] 7 S.C.R.


A            Similar orders were passed on the same day in other cases as well.13
      However, the single member dismissed the application for condonation of
      delay filed by the appellant though he did not pass any order in the other
      cases in view of the assurance that was made by the Attorney General
      before this court. The order of this court on 11 January 2018 notes the
      assurance of the Attorney General that the rule under challenge would
B
      be rectified to bring it in accord with the Act and the judgments of this
      court. True, the order of this Court does not specifically record a direction
      for stay. This must however, be understood in the perspective of the fact
      that the Attorney General had placed a solemn assurance before the
      Court that the rule would be rectified to bring it in conformity with the
C     parent enactment and the decisions of this Court. Implicit in this is the
      settled principle that delegated legislation must be in conformity with the
      enactment of the legislature which authorises its making. A rule cannot
      rise above the source of power. Propriety warranted that a consistent
      course of action should have been followed by the NGT, once the
      assurance which was held out before this court by the Attorney General,
D
      was brought to its knowledge. The order of this Court on 31 January
      2018 directed that “in the meantime, the Chairperson shall not constitute
      a Single Member Bench….”. The phrase “in the meantime’ elucidates
      that during the time the executive deliberates on the dissonance of the
      Rule with the Act and judgments, there shall be a restraint on its
E     implementation. Thus, it is evident from the phraseology of the order
      that this Court intended that there be an interdict on the constitution of
      single member benches constituted in purported exercise of the power
      conferred by the rule. The assumption of jurisdiction by a single member
      Bench clearly stands vitiated. The Single member could not have passed
      an order in view of the proviso to Section 4(4)(c) of the NGT Act 2010
F
      which states that the number of expert members hearing the appeal or
      application shall be equal to the number of judicial members, mandating
      that there shall be at least one expert member on the Bench.
             13. We accordingly allow the appeals and set aside the impugned
      order of the NGT dated 16 July 2021. The original order of the NGT
G     dated 29 January 2018 shall stand set aside. Appeal No 36 of 2017 shall
      stand restored to the file of the NGT for disposal afresh. All the rights
      and contentions of the parties including on the issue of limitation are

      13
        Rajabhau Pawar v. The State of Goa through its Chief Secretary (OA No. 97/2016);
      the Goa Foundation v. Goa State EIAA (OA No. 33/2015);
H
      TALLI GRAM PANCHAYAT v. UNION OF INDIA AND                                 135
      OTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

kept open. This Court has expressed no expression on the merits of the           A
appeals.
       14. Pending applications, if any, stand disposed of.

Ankit Gyan                                                    Appeals allowed.
(Assisted by : Rahul Rathi, LCRA)                                                B




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                                                                                 H